The Government Of Tamilnadu v. C.Nandhakumar

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 15.09.2021 CORAM :

THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN AND THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN WRIT APPEAL NO.2336 OF 2021

1. The Government of Tamil Nadu, Rep. by Secretary to Government, Health and Family Welfare Department, Secretariat, Chennai-600 009.

2. The Deputy Director of Health Services, Tirupattur, Vellore District - 635 601.

3. The Director of Public Health and Preventive Medicines, Chennai - 600 006.

... Appellants vs.

C.Nandhakumar ... Respondent Writ Appeal filed under Clause 15 of Letters Patent against the order dated 12.07.2021 passed by this Court in W.P.No.32145 of 2019.

W.P.No.32145 of 2019:- Writ Petition filed under Article 226 of the constitution of India, praying to issue a writ of certiorarified mandamus calling for the records on the file of the first respondent in letter No.8824/AB-1/2016-2, dated 04.04.2016 quash the same and direct the respondents to regularize the services of the petitioner as per the representations dated 04.03.2019 and 08.04.2019 For Appellants :

Mr.K.Tippu Sultan, Government Advocate For Respondent :

Mr.S.N.Kirubanandam

J U D G M E N T

(Judgment of the Court delivered by S.VAIDYANATHAN,J.) This Writ Appeal has been preferred, challenging the order of the learned single Judge, dated 12.07.2021, setting aside the order, dated 04.04.2016 with a direction to regularize the services of the Writ Petitioner.

2. The respondent / Writ Petitioner was engaged as a Driver on daily wage basis on 12.11.2014 to drive the Government vehicle in the Community Health Centre under (JSSK) Janana Sisu Suraksha karyakram Scheme. Even though it has been contended by the respondent that he has been appointed as a Driver, there is no appointment order issued to that effect. Further, it is contended that though the Writ Petitioner was employed as Driver on Contract Basis and was hired for a particular project, his services have been utilised in various other projects.

3. It is the contention of the Appellants that there is a procedure for recruitment of Drivers and the case of the respondent is a back door entry. The appellants/Government relied upon the decision, reported in (2006) 4 SCC 1 in the case of Secretary, State of karnataka and others TVs Umadevi and others to contend that the Apex Court has criticized the practice of back door entry. It has been contended by the Government that for the purpose of selection of the Driver, they called for the candidates through advertisement, by duly mentioning the prescribed qualification and upper age limit. However, the Writ Petitioner crossed the upper age limit as 32 years of age is fixed for MBC category.

4. The learned Single Judge considering all these aspects, came to a conclusion that the selection of the respondent as Driver cannot be construed as a back door entry, as his service has been retained for nearly three years, which has been admitted by the Appellants herein. The learned Single Judge held that the service of the Writ Petitioner on daily wage basis was from 12.01.2014 to 16.01.2019 and the stand taken by the Government for nonabsorption on the ground of engagement on contract basis under the National Rural Health Scheme, is contrary to the Rules and Regulations. Hence, the learned Single Judge held that when the service of the Writ Petitioner has been utilised for years together, depriving him the status of Regular Employee is highly an injustice one.

5. Though the reliance has been placed in Umadevi's case referred to supra, in an identical situation, a Division Bench of this Court in W.A.Nos.391 of 2020 and batch, directed the Government to regularize the employees/

respondents therein into service, who are similarly placed as that of the respondent herein. That apart, the Apex Court has also rejected the plea of the Government with regard to regularisation and that regularisation has been ordered to one V.Madhu in SLP No.28359-28361/2019.

6. De hors the aforesaid two orders, the Government is still relying on Umadevi's case, which leads us to assume that the Government is only been to disengage such employees so as to deprive their regularisation in service. As observed earlier, insofar as the appointment of the Writ Petitioner is concerned, the selection process could be termed as irregular, but certainly, not illegal.

7. Hence, We are of the view that the order of the learned single Judge needs to be confirmed and the Writ appeal is to be dismissed.

8. One of us, (SVNJ) had elaborately dealt with the issue of permanency in the case of P.Paramasivam and others Vs. the Management of Madurai Corporation, Madurai and others (W.P.(MD)No.14148 and 16595 of 2013 dated 03.09.2018).

9. It is made clear that if the Writ Petitioner is not in employment at present, on the principle of "No Work, No Pay", the wages need not be paid to him taking into account the pandemic situation. The Appellants are directed to provide a Regular Employment to the Writ Petitioner on and from 01.12.2021 by treating the past period as a continuous one for the purpose of terminal benefirs.

10. With the above observation and direction, this Writ Appeal is dismissed. No costs.

Sd/- Assistant Registrar(CS III) //True Copy// Sub Assistant Registrar vum To +1cc to Mr.S.N.Kirubanandam, Advocate, S.R.No.47137 WRIT APPEAL No.2336 of 2021 NR(CO) CS/08/11/2021